Cornwall LivingIssue #107
Future in trust
Nick Latimir of RRL Cornwall explores the ways in which you can protect your children’s inheritace during second marriage.
Prompted by a recent article in the Sunday Times, Nick Latimir of RRL Wills shares his thoughts on the delicate issues surrounding protection of children’s inheritance following a second marriage. In this case, a father had remarried in later life and he and his new wife had made wills which made provision for one another on the first death and, on the second death, created an agreed split between their respective families. However, sadly for the father’s children, after his death they discovered that their step-mother had changed her will and there was no longer any provision for them.
It is common, Nick tells us, for couples to make wills in this way. They are often referred to as ‘Mirror Wills’ on the basis that the same provisions apply on first and second death in each will. On paper this looks to be a fair and common-sense way of ensuring that the surviving partner can continue to live without any financial hardship or disruption. Yet as the Sunday Times article illustrates, making wills in this way relies solely on trust and there is nothing to stop the surviving partner changing their will after the first death. This is particularly problematic for couples who have children from earlier relationships; once the first dies, the ties with the children can become remote or strained. Occasionally, bereaved partners will form new relationships and this can further complicate the position. “I have on one occasion in my professional life encountered an individual who sought to marry a vulnerable and recently bereaved gentleman, knowing full well that marriage would revoke his existing will, leaving him without a valid will and therefore intestate. Under the intestacy rules,” Nick explains, “the individual in question stood to be the major beneficiary. Sadly, such cases are not infrequent.”
So what is the answer? The Sunday Times article sought to suggest that couples in similar circumstances should be looking to make ‘Mutual Wills’. Mutual Wills, Nick elaborates, are wills that are drawn up by a couple and signed following an agreement between them which is intended to bind the survivor after the first death. Broadly speaking this means that the wills cannot be updated after the first death and are therefore inflexible. As we know, life can change dramatically in a short space of time and unforeseen circumstances can arise. On that basis, says Nick: “I tend to advise clients to avoid setting up Mutual Wills.”
A preferable way of making provision for the surviving partner but also ensuring protection for children’s ultimate inheritance is the use of a trust. Nick explains that the trust is created by the will on the first death and can provide the surviving partner with a right to benefit during their lifetime, for example by receiving income from investments and continuing to live in the family home.
This type of trust is commonly known as a life interest trust or interest in possession trust. The trust can be flexible to allow the trustees to use capital for the benefit of the surviving spouse, for example, for additional care needs, should they require it.
For further information and to discuss your own will, it pays to seek expert advice, so be sure to contact Nick and the team at RRL.
If you would like to discuss the issues raised in this article or to talk about updating your wills, please contact Nick Latimir on 01872 276116 or email firstname.lastname@example.org. Nick is a solicitor and member of both STEP (Society of Trust and Estate Practitioners) and Solicitors for the Elderly.